[Federal Register Volume 89, Number 110 (Thursday, June 6, 2024)]
[Rules and Regulations]
[Pages 48330-48337]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-12192]


=======================================================================
-----------------------------------------------------------------------

GENERAL SERVICES ADMINISTRATION

48 CFR Parts 502, 538, and 552

[GSAR Case 2022-G517; Docket No. GSA-GSAR--2023-0028; Sequence No. 1]
RIN 3090-AK60


General Services Administration Acquisition Regulation; Reduction 
of Single-Use Plastic Packaging

AGENCY: Office of Acquisition Policy, General Services Administration 
(GSA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The General Services Administration is amending the General 
Services Administration Acquisition Regulation to add a new provision 
and clause to identify single-use plastic free packaging availability 
for products under the Federal Supply Schedules with the goal of 
reducing single-use plastic waste.

DATES: Effective July 8, 2024.

FOR FURTHER INFORMATION CONTACT: For clarification of content, contact 
Ms. Adina Torberntsson, Procurement Analyst, at [email protected] or 
720-445-0390. For information pertaining to

[[Page 48331]]

status or publication schedules, contact the Regulatory Secretariat 
Division at [email protected] or 202-501-4755. Please cite GSAR Case 
2022-G517.

SUPPLEMENTARY INFORMATION:

I. Background

    On December 26, 2023, the General Services Administration (GSA) 
published a proposed rule to the Federal Register at 88 FR 88856 to 
address single-use plastic (SUP) and packaging materials in the Federal 
Supply Schedule (FSS). Prior to the proposed rule being published, an 
Advanced Notice of Proposed Rulemaking (ANPR) was issued on July 7, 
2022.\1\ Feedback from environmental organizations, other federal 
agencies (to include federal scientists, industry associations and 
advocates, Congressional members, and GSA's Federal Advisory Committee) 
were all taken into consideration for the development of the proposed 
rule.
---------------------------------------------------------------------------

    \1\ 87 FR 40476.
---------------------------------------------------------------------------

    The final rule provides definitions to the GSA Acquisition 
Regulation (GSAR), as well as a provision and clause that will allow 
FSS offerors to provide to agencies single-use plastic free (SUP free) 
packaging.

II. Discussion and Analysis

A. Summary of Significant Changes

    The final rule clarifies that an icon will be utilized in GSA's 
acquisition platforms to identify SUP free packaging, regardless if it 
is brand/product packaging or shipping packaging. A singular icon is 
being added to provide flexibility in identifying the offered product. 
The remaining text from the rule, to include the definitions, remains 
the same.

B. Analysis of Public Comments

    In summary, 45 public comments were received for the rule during 
the comment period that lasted from December 26, 2023 through February 
26, 2024. Commenters ranged from individuals, academia, industry, 
industry associations, environmental organizations, and state 
government offices.
    The comments are highlighted below as they address ideas on 
implementation, and raise concerns about environmental impact, 
alternative approaches, cost, compliance and legal authority.
Implementation
    Comment: Several commenters requested to phase out and/or 
completely eliminate plastics, specifically focused on banning 
polystyrene and plastic film, from the products sold on the FSS.
    Response: The scope of the rule is seeking to incentivize through 
marketing opportunities on the Federal Supply Schedule the reduction of 
single-use plastic (SUP) packaging by providing an icon to easily 
identify products which are SUP free for federal acquisition by 
highlighting those products on the Schedule; seeking to ban these 
products is outside the scope of this rulemaking.
    Comment: A handful of commenters asked for third party verifiers as 
part of the rule implementation to confirm the use of SUP free 
packaging and provide more rule constraints.
    Response: GSA did not accept this recommendation as it is outside 
the scope of this rulemaking. Third party verification would add 
regulatory burden and could discourage small businesses from 
participating in the FSS program.
    Comment: Multiple commenters asked for phased implementation of the 
rule, with some specifically requesting mandatory applicability.
    Response: The rule allows contracting offices to use their judgment 
based on the requirements of individual acquisitions when deciding to 
apply the clause and provision. Implementation guidance will be issued 
once this rule is effective and can be found at the FSS refresh,\2\ 
which is located at: https://sam.gov/opp/88193aba7dfe499ea1e48cd303dea73b/view.
---------------------------------------------------------------------------

    \2\ This action is also referred to as the MAS refresh with MAS 
and FSS being used interchangeably.
---------------------------------------------------------------------------

    GSA is not mandating FSS offerors provide SUP free packaging; 
rather, it allows offerors to identify whether such packaging is 
available to ordering agencies. GSA is not making it mandatory to 
provide flexibility in solutions offered on the FSS.
    Comment: One commenter asked for more restrictive language in the 
clause to specify the format or structure for presenting price 
information. The commentator stated that having a standardized format 
would facilitate consistency and ease of comparison for ordering 
activities.
    Response: No change required. GSA already has a standardized format 
as it relates to presenting price information. The submission of price 
proposals is included in the Federal Supply Schedule Instructions to 
Offerors. Offerors follow these instructions when submitting their 
price proposals.
    Comment: One commenter asked to include additional examples in the 
definitions.
    Response: This recommendation will be taken into consideration in 
the agency's implementation instructions or frequently asked questions.
    Comment: One commenter asked to include alternative packaging 
examples.
    Response: This recommendation will be taken into consideration in 
the agency's implementation instructions or frequently asked questions.
    Comment: Multiple commenters asked about a pilot program to address 
plastic waste.
    Response: GSA has had an ongoing initiative \3\ for the past three 
(3) years to encourage innovation for sustainability in federal 
acquisition within the agency, and will continue to pursue this program 
in addition to this rule. While the program was not focused on plastic 
waste specifically, it encourages the use of innovative contracting 
solutions that address environmental issues.
---------------------------------------------------------------------------

    \3\ GSA Acquisition Letter MV-21-10.
---------------------------------------------------------------------------

    Comment: One commenter asked to limit the definition of SUP to 
remove language referencing the disposal of SUP.
    Response: This comment is not adopted as the proposed change to the 
language would reduce the impact of the rule and further confuse GSA 
offerors who are trying to implement the rule. The rule is not about 
the disposal, or recycling if a product under the right conditions 
could be recyclable, it is merely about reduction.
    Comment: Multiple commenters asserted that the rule will diminish 
the efficiency of federal procurement.
    Response: It is unclear what the basis is for how the rule would 
diminish the efficiency of federal procurement. Providing an icon for 
SUP free packaging will enhance procurement efficiency by providing an 
additional alternative, increasing visibility, and permitting the buyer 
to consider any price addition or savings.
    Comment: One commenter asked for the meaning of the term 
``competent and reliable evidence.''
    Response: This plain language term is utilized to provide the 
Contracting Officer the flexibility to determine what is acceptable 
from a pragmatic perspective. Guidance for contracting officers is also 
provided in GSAR 552.238-78 Identification of Products that Have 
Environmental Attributes and thus is not new to environmental 
purchasing.
Environmental Impacts
    Comment: Multiple commenters, including mass mailing submissions, 
provided feedback that further commitments were needed to maximize

[[Page 48332]]

environmental impact. This messaging was echoed by multiple 
organizations and other commenters asking GSA to do more.
    Response: The FSS program is GSA's premier contract vehicle, 
offering thousands of contractors the opportunity to do business with 
the federal government. The rule encourages industry to offer SUP free 
packaged products in their FSS contracts that agencies can buy. The 
rule is not intended to ``ban'' or regulate any particular item. For 
purposes of this rule, GSA is asking to be offered, or made available, 
SUP free packaging. For this reason, the comments that called for 
either the ban, or removal of products from the FSS are outside of the 
scope of this rule. The anticipated benefit of the rule is the 
coordination of industry and FSS ordering officials to reduce the 
single-use plastic waste stream. Plastic packaging accounts for 40 
percent of all plastic produced.\4\ The reduction of plastic packaging 
waste is impactful because it is an element of multiple items offered 
on the FSS.
---------------------------------------------------------------------------

    \4\ Fast Facts About Plastic Pollution, National Geographic, see 
https://www.nationalgeographic.com/science/article/plastics-facts-
infographics-ocean-
pollution#:~:text=40%20percent%20of%20plastic%20produced,just%20once%
20and%20then%20discarded.
---------------------------------------------------------------------------

    Comment: Multiple commenters recommended that GSA should follow the 
expert advice of its GSA Acquisition Policy Federal Advisory Committee 
to develop policies and a strategy with numerical goals to phase out 
all SUP products across GSA, including plastic bags, utensils, food 
ware, and beverage bottles. The commenters further requested that GSA 
require the use of SUP free or reusable packaging when federal agencies 
purchase products using GSA contracts, incentivize the products in 
federal agencies' purchases, and share this information publicly.
    Response: GSA's Acquisition Federal Advisory Committee has made 
several recommendations.\5\ This rule is in line with their 
recommendations, specifically to address single-use plastic waste 
through rulemaking. GSA will continue evaluating all of the 
recommendations from the Committee and will be taking additional 
implementation actions.
---------------------------------------------------------------------------

    \5\ GSA Acquisition Policy Federal Advisory Recommendation 
Reports.
---------------------------------------------------------------------------

Alternative Approaches
    Comment: Several commenters asked for the withdrawal of the rule, 
and instead requested a mandatory ban of SUP products from the FSS, in 
addition to a FAR change.
    Response: This comment is not adopted. Requiring a mandatory ban on 
single use plastic products is outside of the scope of the rule.
    Comment: Multiple commenters included comments to encourage life 
cycle cost analysis versus limitation of SUP. Comments also included 
information on the recycling of plastics, to include chemical 
recycling.
    Response: The rule incentivizes suppliers to package goods without 
SUP packaging. Buyers of commercial products through GSA 
Advantage![supreg] or through the FSS are not likely to use life cycle 
cost analysis. This rule is not scoped to address waste management.
Costs
    In the comments received, cost was addressed not numerically, but 
in the overarching concept of efficiency as it relates to the market.
    Comment: A commenter asked GSA to recognize reusable packaging as 
an alternative to SUP free packaging.
    Response: No change required. The definition of SUP free includes 
reusable packaging that is typically refilled or otherwise reused by 
the producer. To be clear, packaging that may be reusable, but is not 
typically reused, would not be considered here as it is outside the 
scope of the rule.
    Comment: A commenter asserted that there would be extra costs for 
the production, transportation, and disposal as a result of the rule.
    Response: The rule is voluntary and provides additional opportunity 
for Federal Supply Schedule contractors to promote their products that 
have SUP free packaging.
    Comment: A commenter provided a statement of support for the rule 
having a voluntary incentive based approach. This comment includes a 
request to clarify whether the icon is plural or singular.
    Response: Noted. The final rule is revised to clarify one icon is 
anticipated.
Compliance
    Comment: One commenter questioned if the ``SUP free'' term, under 
the guidance provided by the Federal Trade Commission (FTC), would be 
determined to be a claim of general environmental benefit, and in turn 
would require verifiable substantiation of the claim such as life cycle 
data.
    Response: No. The FTC Green Guides \6\ and ISO 18601:2013 are 
referenced in developing the definition. GSA is not requiring 
sustainable packaging, which would require some sort of an assessment 
as to contents. Instead the agency is asking for the absence of 
something, in this case single-use plastic, from packaging. The result 
will be an icon in GSA Advantage![supreg], not a new ecolabel on the 
material itself. While the FTC Green Guides are referenced in 
developing the definition, the FTC process to evaluate environmental 
marketing claims is a separate process.
---------------------------------------------------------------------------

    \6\ https://www.ftc.gov/sites/default/files/documents/federal_register_notices/guides-use-environmental-marketing-claims-green-guides/greenguidesfrn.pdf.
---------------------------------------------------------------------------

Authority
    Comment: One commenter questioned GSA's authority to ban SUP, 
drawing parallel to GSA's 2020 promulgated regulations that barred the 
federal government from buying goods or services from any company that 
uses products from Huawei Technologies and several other Chinese 
companies.
    Response: This rule is not a ban. The law and regulations 
underlying the products that utilized Huawei Technologies differs from 
this rule, and was instituted by the FAR Council, of which GSA is one 
member. GSA has authority to govern the Federal Supply Schedule program 
under Title 41 of the United States Code (41 U.S.C. 152(3)), including 
this voluntary SUP free packaging policy.
    Comment: One commenter questioned GSA's authority to issue plastic 
waste regulations, asking if the scope of authority for GSA to issue 
this rule is exceeded as the rule focuses less on effective and 
efficient government procurement and more on green policies.
    Response: GSA is authorized to issue regulations, including the 
GSAR, to manage the relationship between GSA and our contractors in 
accordance with 40 U.S.C. 121. GSA is further authorized to issue the 
rule in accordance with 41 U.S.C. 152(3), which provides GSA the 
authority to manage the Multiple Award Schedules Program, also referred 
to as the FSS Program. GSA is further empowered to issue the rule in 
accordance with 40 U.S.C. 501-502 which provides GSA authorization for 
procurements for executive agencies and other entities, including the 
FSS Program. This rule will enhance the effectiveness and efficiency of 
Government contracts through providing an icon identifying when SUP 
free packaging is being used in a procurement. The FSS Program is made 
up of multiple contracts in which GSA asks the contractors to ``offer'' 
different commercial supplies and services to the Government. In turn 
the intent of this rule is to encourage these contractors to offer SUP 
free packaging. This rule is

[[Page 48333]]

not a ban, it is merely providing an opportunity for GSA industry 
partners to offer SUP free packaging and to make that offering visible.
    Comment: Multiple commenters asked that GSA specifically ban 
biobased plastics, and provide a change to the FAR.
    Response: GSA declines to adopt this comment. This comment is 
outside of the scope of this rule. Biobased plastic products fall under 
the BioPreferred program which is administered by the United States 
Department of Agriculture (USDA) and is anchored by the Farm Bill.\7\ 
In addition, this comment is outside the scope of GSA's independent 
regulatory authority. A FAR change would require approval of the entire 
FAR Council (i.e., DOD, NASA and GSA).
---------------------------------------------------------------------------

    \7\ 2002 Farm Bill.
---------------------------------------------------------------------------

III. Expected Impact of the Rule

    There were no public comments received that are specific to the 
economic impact statement of the rule. As such, the analysis remains 
the same as before. This analysis includes both the cost and benefit 
impacts to both the public and GSA. The analysis includes identifying 
relevant products, developing a distinguishable icon, and developing 
internal guidance to help contracting activities learn how to apply 
searching for the icon to procure the environmentally preferable 
products.
    The rule is specific to GSA's FSS program, with the intent of 
significantly reducing the single-use plastic waste stream. When 
voluntarily pursued, this action will reduce the Government's waste 
generation, and potentially save industry partners money by having them 
reduce unnecessary packaging as described in some of the high-profile 
case studies mentioned in section I.D. of the Proposed Rule document 
``Industry Practices and Consumer Trends''. It is expected that by 
reducing the packaging's overall bulk, industry will be better 
positioned to ship their items efficiently and effectively. Reducing 
excessive packaging has proven effective in increasing the amount of 
goods that can be loaded for transportation and is therefore helpful in 
the distribution of products.

General Compliance Requirements

    The rule will enable GSA to incentivize contractors to voluntarily 
provide SUP free packaging information through GSA's online system. The 
estimated cost per contractor is $2,087. The calculations as to how GSA 
got to this estimate are further described later in section Summary of 
Public Costs.
    The SUP free packaging identification provision allows FSS 
contractors to identify products that are either packaged and/or 
shipped without single-use plastic packaging. The rule also includes a 
clause for the contractor that allows for either a price premium or 
discount for SUP-free packaging when such a premium or discount is 
consistent with their commercial practice.

Benefits

    This rule is intended to benefit GSA and customer agencies by 
reducing the single-use plastic waste stream.
    The Federal Government is the world's single largest purchaser of 
goods and services, spending over $694 billion \8\ in contracts in 
Fiscal Year 2022 alone. Public procurement can drive innovation and be 
a catalyst for adoption of new norms and global standards. Since the 
FSS is the premiere entry point for commercial contractors to sell 
products (and services and solutions) to the Federal Government, the 
goal is to encourage the adoption of a new procurement norm to reduce 
single-use, unrecyclable, difficult to recycle, or frequently littered 
products plastic waste. Practices introduced or highlighted for the FSS 
can easily be adopted into other Government contracts.
---------------------------------------------------------------------------

    \8\ A Snapshot of Government-Wide Contracting for FY, April 15, 
2023, https://www.gao.gov/blog/snapshot-government-wide-contracting-fy-2022.
---------------------------------------------------------------------------

    Overall, the rule is intended to benefit the public by encouraging 
positive behaviors in reducing waste, and reducing product costs by 
building in efficiencies. The rule is an initial step to continue to 
work with industry partners in addressing the intersection of waste 
materials and logistical efficiency in providing better packaging. This 
is an important first step in working with our suppliers in developing 
sustainable solutions together to meet mutual future goals.

Estimated Public Costs

    The following is a summary of the estimated cost impacts to the 
public in addressing this new requirement to reduce single-use plastic 
packaging. These costs are incurred one-time up-front and are not 
recurring to participating contractors.
1. Regulatory Familiarization
    Regulatory familiarization includes the amount of time and effort 
it takes a company to become familiar with the requirements of the 
rule. The identification provision and availability clause speak to the 
behaviors that GSA wants to see industry adopt when doing business 
under GSA contracts. The time to read over and digest the information 
provided in this rule is negligible. The provision is similar to other 
self-identifying provisions utilized in Government acquisition.
    For this reason, the regulations require more of a familiarization 
in learning how to register in the electronic tool described during 
their contract's refresh; the assumption is 1 hour of time. GSA 
calculated the time based on the agency's subject matter expertise. We 
utilized the total number of Federal Supply Schedule contracts. The 
individual cost per each FSS contractor would be $89.96 for one hour of 
time at a GS-12 Step 5 rate.\9\ The upper bound total cost for 
regulatory familiarization if all FSS contractors were to participate 
would equal $1,259,440.\10\
---------------------------------------------------------------------------

    \9\ OPM Pay Table 2024 Rates Rest of United States. We assume 
this work is done by an employee equivalent to the GS-12 step 5 
level. The hourly wage at this level is $44.98 which we adjust 
upward by 100% to $89.96 to account for fringe benefit and overhead 
costs.
    \10\ The formula to calculate this cost is 14,000 contracts 
multiplied by the per contractor cost of $89.96.
---------------------------------------------------------------------------

2. SUP Free Packaging Identification
    The costs to comply with the SUP free packaging identification 
provision includes time for the offeror to analyze their product 
catalog, identify existing SUP free offerings, identify potential new 
(SUP) packaging offerings, and complete the provision questions.
    The anticipated average time, based on GSA's knowledge of the FSS 
program, to analyze the existing product catalog is 1 hour. This 
assertion is applied, since no industry feedback on this calculation or 
other time calculations were received. The anticipated average time to 
identify existing and potential new SUP free packaging offerings is 1 
hour. The anticipated time to answer the provision is 0.1 hours. The 
individual cost per each FSS contractor would thus be $188.92 for 2.1 
hours of time at a GS-12 Step 5 rate. The upper bound total cost for 
SUP free packaging identification if all FSS contractors were to 
participate would equal $2,644,824.
3. SUP Free Packaging Availability
    The costs to comply with the SUP free Packaging Availability clause 
includes time for the offeror to research and determine price premiums 
or discounts for SUP free offerings and submit the information.
    The anticipated average time to research and determine the 
applicable pricings is 20 hours. The anticipated

[[Page 48334]]

time to complete the submission is 0.1 hours. The individual cost per 
each FSS contractor would thus be $1,808.20 for 20.1 hours at a GS-12 
Step 5 rate. The upper bound total cost for complying with the SUP free 
Packaging Availability clause if all FSS contractors were to 
participate would equal $25,314,744.
4. Anticipated Market Shifts
    As described in the proposed rule \11\ there is a strong indication 
that a reduction in single-use plastic improves the marketability of a 
company and positively displays a company's values. As explained in the 
proposed rule, multiple states have adopted policies to address plastic 
pollution, and consumer trends are favoring a reduction in SUP. As the 
fifth largest economy in the world by GDP, California's legislation is 
a great indicator that the market can react to a reduction in single-
use plastic packaging. Multiple states have followed suit with similar 
legislative actions to reduce single-use plastic packaging, including 
Connecticut, Delaware, Hawaii, Maine, New York, Oregon, and 
Vermont.\12\ With the market trending in this direction, accepting this 
change may assist GSA FSS contractors in their overall marketing 
efforts within the private sector as well.
---------------------------------------------------------------------------

    \11\ 88 FR 88856 see section Industry Practices and Consumer 
Trends.
    \12\ https://www.ncsl.org/environment-and-natural-resources/
state-plastic-bag-
legislation#:~:text=Eight%20states%E2%80%94California%2C%20Connecticu
t%2C,banned%20single%2Duse%20plastic%20bags.
---------------------------------------------------------------------------

    Given the volume of purchases made through the FSS every year by 
federal, state, local, tribal governments, and other eligible buyers 
for commercial products, services, and other solutions, this rule is 
likely to effect supply and demand shifts in plastics markets.
    The importance of this rule being voluntary is it allows the FSS 
contractors, who are predominantly small businesses, an opportunity to 
consider how to implement these market changes. By focusing on 
packaging, it is an important first step to address plastic in one area 
of their supply chain. The rule encourages operational decisions to 
reduce plastic waste, and ultimately will influence the market by 
reducing offerings that contain single-use plastic packaging waste.
    Federal agencies and FSS-eligible buyers are seeking to eliminate 
their plastic waste, so those agencies will be ones to seek out this 
icon in helping them accomplish their goals. The rule will support the 
market shift by using the new SUP free icon as an important 
discriminator when buyers are making purchasing decisions. FSS 
contractors who adopt this policy change will become more marketable 
than their peers who decline this voluntary measure. The resulting 
competitive disadvantage to contractors that initially choose not to 
adopt this rule's policy will likely incentivize these firms to 
reconsider adoption. This rule could also create positive spillovers as 
non-FSS contracting firms adopt similar policies to compete with FSS 
contractors in non-FSS markets.
5. Summary of Public Costs
    The estimated overall cost per contractor who chooses to 
participate is $2,087.\13\ The upper bound total estimated public cost 
of compliance with this rule, if all FSS contractors adopted this 
voluntary action, would be $29,219,008.\14\ We assume as a lower bound 
that 25 percent of FSS contractors will adopt this voluntary action, in 
which case the lower bound total estimated public cost would be one 
quarter of the upper bound, or $7,304,752.
---------------------------------------------------------------------------

    \13\ This overall per contractor cost is the sum of the 
regulatory familiarization cost of $89.96, the SUP Free Packaging 
Identification cost of $188.93, and the availability clause 
compliance cost of $1,808.30.
    \14\ This total cost is the sum of the regulatory 
familiarization cost of $1,259,440, the SUP Free Packaging 
Identification cost of $2,644,824, and the availability clause 
compliance cost of $25,314,744.
---------------------------------------------------------------------------

    Once recorded, there is no anticipated additional cost during 
subsequent years of performance unless the offeror is providing 
additional SUP free packaging options. However, this cost would be 
absorbed with the cost the contractor would experience any time that 
they modified their FSS price list, which they would do regardless if 
the rule was issued. The anticipated time for this action is so minimal 
there would not be additional calculated cost associated with it.
    With the FSS contractors' identification of SUP free packaging 
being voluntary, the indirect benefits to adopting this change far 
outweigh the costs. FSS contractors who voluntarily comply will have a 
competitive advantage by being able to market themselves utilizing the 
new SUP free packaging icon on GSA Advantage![supreg]. The intent is 
for the market to then shift to more SUP-free packaged products to 
reduce the SUP waste stream. FSS contractors are able to invest in this 
change which may provide greater visibility on GSA's electronic tools 
to Federal agencies and FSS-eligible buyers. With the market trending 
in this direction, accepting this change may assist GSA FSS contractors 
in their overall marketing efforts within the private sector as well.

GSA Costs

1. Update to GSA e-Tools
    GSA reviewed various electronic tools that could support this rule. 
The agency plans to utilize existing online tools such as GSA 
Advantage![supreg] which has the benefit of keeping costs low by 
utilizing IT infrastructure that already exists, and the added benefit 
of industry partners knowing how to utilize the system. During public 
comment, no alternative GSA tools that would be more beneficial to 
utilize were identified.
    Capitalizing on the user interface knowledge, for both the GSA and 
industry, is pivotal in being able to implement the rule quickly.
    The estimated hours to update the existing systems is 800 hours 
(assuming 5 employees working full time on this project for 4 weeks) at 
a GS-12, step 5 \15\ equivalent rate. The total for this effort would 
equal $71,968 (800 x $89.96), which is a fixed cost for the Government 
regardless of the number of FSS contractor participants.
---------------------------------------------------------------------------

    \15\ 2023 Rest of US, 12 Step 9 x 2.0 fringe = $89.96; the rate 
is adjusted upward by 100% to adjust for overhead and benefits.
---------------------------------------------------------------------------

2. Workforce Familiarization
    GSA contracting officers will need to become familiar with the new 
policy at GSAR 502, 538, and 552. The GSA contracting officers will 
need to review these changes, interpret them, and apply them as 
prescribed.
    GSA contracting officers are required to remain current on policies 
for procurement, such as changes to the GSAR. Review of such policy 
changes are considered a part of the normal duties of contracting 
personnel. As such, this analysis does not quantify the time and effort 
for contracting officers to become familiar with the rule. It is 
acknowledged that there is time and effort involved for the acquisition 
workforce to become familiar with the rule or the tools available and 
to assist contractors with compliance, though those potential burden 
hours and costs are minimal.
3. SUP Free Packaging Material Costs
    As a voluntary measure, GSA assumes that price premiums and 
discounts for SUP free packaging will average out to zero additional 
cost. This assumption was not disputed during public comments.

[[Page 48335]]

4. Summary of GSA Costs
    The total estimated GSA cost of implementation of this rule would 
be $71,968 \16\ regardless of the number of industry participants.
---------------------------------------------------------------------------

    \16\ GS-12 Step 5 at $89.96 per hour x 800 hours = $71,968.
---------------------------------------------------------------------------

5. Summary of Overall Costs
    The overall total cost, including both Public and Government costs, 
is outlined in the table below. Public costs are presented as a range 
to reflect uncertainty around voluntary participation. We calculate the 
upper bound of public costs by assuming all FSS contractors 
participate, and we calculate the lower bound of public costs by 
assuming only 25 percent of FSS contractors participate.

----------------------------------------------------------------------------------------------------------------
                                              Number of   Rate per    Cost per       Number of
                   Action                       hours       hour     participant   participants     Total costs
----------------------------------------------------------------------------------------------------------------
Public Costs (Maximum)......................  .........  .........        $2,087          14,000     $29,219,008
Regulatory Familiarization..................          1      89.96         89.96          14,000       1,259,440
SUP Free Packaging Identification...........        2.1      89.96        188.92          14,000       2,644,824
SUP Free Packaging Availability.............       20.1      89.96      1,808.20          14,000      25,314,744
Public Costs (Minimum)......................  .........  .........         2,087           3,500       7,304,752
Regulatory Familiarization..................          1      89.96         89.96           3,500         314,860
SUP Free Packaging Identification...........        2.1      89.96        188.92           3,500         661,206
SUP Free Packaging Availability.............       20.1      89.96      1,808.20           3,500       6,328,686
Government Costs (Fixed)....................  .........  .........         89.86               5          71,968
    System Updates..........................        800      89.86         89.86               5          71,968
        Total Rule Maximum..................  .........  .........  ............  ..............      29,290,976
        Total Rule Minimum..................  .........  .........  ............  ..............       7,376,720
----------------------------------------------------------------------------------------------------------------

Alternatives Considered

    When researching how to address this rule, several solutions were 
considered. After publishing the ANPR, it was determined that a rule 
that focused on reduction is preferable to alternatives such as 
recycling or mandatory elimination of plastic packaging.
    GSA's mission is unrelated to environmental regulated programs such 
as recycling. Additionally, the recycling programs that GSA utilizes 
vary and are governed at local, municipal levels where the agency's 
offices are located.
    Further, a rule seeking a mandatory elimination of plastic 
packaging may not be a feasible solution depending on what is being 
procured. For some supplies, such as healthcare products, plastic 
packaging can be a beneficial material. This rule is not seeking 
plastic elimination as users of FSS may have a need for a product 
packaged with single use plastic, so a broad elimination may not be 
beneficial.
    While there are identified alternatives, described above as 
recycling or elimination, to reach a sustainable outcome regarding 
packaging, GSA is aware of the potential impact of issuing a broad rule 
without providing space for industry to pivot. Given the different 
types of products that GSA procures, a rule asking for changes to 
packaging that provides flexibility is the best method to keep costs 
down, while reaching a sustainable solution.

IV. Executive Order 12866, 13563 and 14094

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess 
all costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
E.O. 14094 Modernizing Regulatory Review \17\ supplements and reaffirms 
the principles, structures, and definitions governing contemporary 
regulatory review established in E.O. 12866 and E.O. 13563.
---------------------------------------------------------------------------

    \17\ https://www.federalregister.gov/documents/2023/04/11/2023-07760/modernizing-regulatory-review.
---------------------------------------------------------------------------

    OIRA has determined this rule to be a significant regulatory 
action. As a significant rule, this action is subject to review under 
section 6(b) of E.O. 12866, Regulatory Planning and Review, dated 
September 30, 1993.

V. Congressional Review Act

    OIRA has determined that this rule is not a major rule under 5 
U.S.C. 804(2). Subtitle E of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (codified at 5 U.S.C. 801-808), also known as the 
Congressional Review Act, 5 U.S.C. 801 et seq., as amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a ``major rule'' may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. The General Services Administration will 
submit a report containing this rule and other required information to 
the U.S. Senate, the U.S. House of Representatives, and the Comptroller 
General of the United States. A major rule cannot take effect until 60 
days after it is published in the Federal Register.

VI. Regulatory Flexibility Act

    GSA does not expect this rule to have a significant economic impact 
on a substantial number of small entities within the meaning of the 
Regulatory Flexibility Act, 5 U.S.C. 601, et seq. because the rule 
change allows for many different solutions to the offeror as to how to 
propose a solution that considers transitioning from plastic packaging 
to SUP free packaging.
    GSA has prepared a Final Regulatory Flexibility Analysis (FRFA) 
consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. 
The FRFA is summarized as follows:

    The rule will apply to large and small businesses. For purposes 
of this assessment, information generated from the FAS Schedule 
Sales Query Plus (SSQ+) has been used as the basis for estimating 
the number of contractors that may be involved. There are 
approximately 14,000 FSS contractors, of which over 12,000 (85 
percent) were small business entities. There were no comments 
received that would indicate that the rule places small businesses 
at a disadvantage, if anything there were comments indicating that 
the rule benefits small businesses ability to promote themselves on 
the Schedule.
    The rule includes a provision for offerors to self-identify if 
they include single-use plastic (SUP) free packaging. The manner in 
which the offeror is answered, is then visible in a GSA electronic 
tool, which is provided by the agency. There are no fees associated 
with the identification tool, and the provision consists of two 
questions.
    The rule does not duplicate, overlap, or conflict with any other 
Federal rules.

[[Page 48336]]

    There are no known alternatives to this rule which would 
accomplish the stated objectives. Rule alternatives that could meet 
similar objectives are not advantageous to either the GSA or 
industry due to excessive cost and burden. An alternative would be 
to mandate specific types of packaging. Depending on the industry, 
there may be unintended cost consequences for a total change in 
packaging (for example transitioning from plastic to glass, the 
unintended cost might be due to transportation of a heavier 
product). For this reason the rule provides flexibility to industry 
to offer the Government solutions on reducing waste.

    The Regulatory Secretariat will be submitting a copy of the FRFA to 
the Chief Counsel for Advocacy of the Small Business Administration. A 
copy of the FRFA may be obtained from the Regulatory Secretariat 
Division.

VII. Paperwork Reduction Act

    The Paperwork Reduction Act (44 U.S.C. chapter 3501) does apply 
because the rule contains information collection requirements. The 
existing Office of Management and Budget (OMB) Control Number 3090-0303 
titled ``Federal Supply Schedule Solicitation Information'' will be 
updated to reflect the information to be collected through GSAR 
552.238-118 and GSAR 552.238-119.

A. Public Reporting Burden

    Public reporting burden specific to this rule and the revision to 
collection of information previously approved is voluntary and includes 
the time for reviewing instructions, searching existing data sources, 
gathering and maintaining the data needed, and completing and reviewing 
the collection of information.

GSAR 552.238-118

    The annual reporting burden is estimated as follows, based on all 
FSS contract holders. This is if all 14,000 contractors participate 
providing a response within the first year, with the time estimate 
based on time needed to submit the response to the provision:
    Respondents: 14,000.
    Responses per Respondent: 1.
    Total Responses: 14,000.
    Hours per Response: 2.
    Total Burden Hours: 28,000.
GSAR 552.238-119
    The annual reporting burden is estimated as follows:
    Respondents: 14,000.
    Responses per Respondent: 1.
    Total Responses: 14,000.
    Hours per Response: 2.
    Total Burden Hours: 28,000.
    Requesters may obtain a copy of the information collection 
documents from the GSA Regulatory Secretariat Division, by calling 202-
501-4755 or emailing [email protected]. Please cite ``Information 
Collection 3090-0303'', in all correspondence.

List of Subjects in 48 CFR Parts 502, 538 and 552

    Government procurement.

Jeffrey A. Koses,
Senior Procurement Executive, Office of Acquisition Policy, Office of 
Government-wide Policy, General Services Administration.

    Therefore, GSA amends 48 CFR parts 502, 538, and 552 as set forth 
below:

0
1. The authority citation for 48 CFR parts 502, 538, and 552 continues 
to read as follows:

    Authority:  40 U.S.C. 121(c).

PART 502--DEFINITIONS OF WORDS AND TERMS

0
2. Amend section 502.101 by adding in alphabetical order the 
definitions of ``Packaging'', ``Plastic'', ``Single use plastic 
(SUP)'', and ``Single-use plastic (SUP) free packaging'' to read as 
follows:


502.101   Definitions.

* * * * *
    Packaging means the material used to protect an item. Packaging 
includes, but is not limited to: brand packaging, grouped packaging, 
shipping packaging, ancillary packaging, and redundant packaging.
    (1) Brand packaging, sales packaging or primary packaging means 
packaging intended to provide the user or consumer with the individual 
unit of the product, such as plastic casing.
    (2) Grouped packaging or secondary packaging means packaging 
intended to bundle, sell in bulk, brand, or market/display products.
    (3) Shipping packaging means packaging that serves as protection 
for the goods to ensure safe transport to the end customer, including:
    (4) Ancillary packaging or transport packaging or tertiary 
packaging means packaging intended to secure the product, such as 
packing peanuts, wrapping materials, or molded materials. Ancillary 
packaging (or all shipping packaging) is typically outside of brand 
packaging.
    (5) Redundant packaging or unnecessary packaging means packaging 
that does not add any measurable protection to the supply being 
shipped, such as multiple layers of bubble wrap to an already durable 
product that is encased in a cardboard box. An example of this is a 
home testing kit with all plastic components already packaged in a 
cardboard box with cardboard inserts to absorb shock, that is then 
shipped in multiple layers of bubble wrap. In this example the bubble 
wrap is the redundant single-use plastic packaging.
    Plastic means a synthetic or semisynthetic material chemically 
synthesized by the polymerization of organic substances that can be 
shaped into various rigid and flexible forms, and includes coatings and 
adhesives. ``Plastic'' excludes natural rubber or naturally occurring 
polymers such as proteins or starches.
    Single-use plastic (SUP) packaging means any plastic used for the 
containment, protection, handling, delivery, or presentation of goods 
by a producer for a consumer with the intent of being used once and 
then discarded, recycled or disposed of immediately after its contents 
have been used or unpackaged, and typically not refilled or otherwise 
reused by the producer. Packaging includes, but is not limited to brand 
packaging, grouped packaging, shipping packaging, ancillary packaging, 
and redundant packaging.
    Single-use plastic (SUP) free packaging means Single-use plastic 
(SUP) free packaging means product or shipping containment materials 
free of single-use plastic. Other attributes of single-use plastic free 
packaging may include the following: use of minimal materials, will be 
reused multiple times, or produces less emissions compared to 
traditional manufacturing or distribution. These additional attributes 
alone do not qualify as SUP free. Examples may include, but are not 
limited, to corrugated cardboard, paper products, and paper backed 
tape.

PART 538--FEDERAL SUPPLY SCHEDULE CONTRACTING

0
3. Amend section 538.273 by--
0
a. Adding paragraph (a)(4);
0
b. Adding paragraph (d)(40); and
0
c. Removing from paragraph (e) the word ``clause''.
    The additions read as follows:


538.273  FSS solicitation provisions and contract clauses.

* * * * *
    (a) * * *
    (4) 552.238-118, Single-use Plastic Free Packaging Identification.
* * * * *
    (d) * * *
    (40) 552.238-119, Single-use Plastic Free Packaging Availability.
* * * * *

[[Page 48337]]

PART 552--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
4. Amend section 552.238-88 by--
0
a. Revising the date of the clause; and
0
b. Adding paragraph (c).
    The revision and addition read as follows:


552.238-88   GSA Advantage![supreg].

* * * * *

GSA Advantage![supreg] (Jul 2024)

* * * * *
    (c) Single use plastic (SUP) free packaging icon. Contractors 
are encouraged to utilize the GSA Advantage![supreg] single-use 
plastic (SUP) free packaging icon when applicable (see 552.238-118). 
The offeror may include in their price list if the contractor is 
providing SUP-free packaging (either for shipping or as part of the 
product packaging) at either a price premium or discount (see 
552.238-119).
(End of clause)

0
5. Add section 552.238-118 and 552.238-119 to read as follows:


552.238-118   Single-use Plastic (SUP) Free Packaging Identification.

    As prescribed in, 538.273(a) insert the following provision:

Single-Use Plastic Free Packaging Identification (July 2024)

    (a) Single-use plastic free packing promotions. Ordering 
activities may focus their GSA Advantage![supreg] search on the 
designated icon and price to meet climate objectives. Contractors 
who want to be considered must include SUP free packaging as defined 
in 502.101.
    (b) Procedures. Offerors may complete the information in 
paragraph (c) of this provision when the resulting contract includes 
supplies or products.
    (1) SUP free brand packaging. Schedule contractors may 
incorporate this information as part of their Schedule price list 
once the products that utilize SUP free brand packaging are 
incorporated under their Schedule contract, prior to competing for 
an order for the identified product.
    (2) SUP free shipping packaging. If the offeror is a reseller 
who is unable to address the brand packaging, but would like to 
pursue the icon for SUP free shipping packaging, they may identify 
this availability.
    (c) Optional identification submission. In order to be 
considered for the designated icon noted in paragraph (d) of this 
provision, the offeror must provide the following information.
    (1) SUP free brand packaging. The offeror identifies that some 
or all supplies delivered under a contract resulting from this 
solicitation __ will use SUP free brand packaging. SUP free brand 
packaging where applicable should be included in the offer's price 
list.
    (2) SUP free shipping packaging.
    (i) The offeror identifies that some or all the supplies to be 
delivered under a contract resulting from this solicitation __ will 
use only SUP free shipping packaging. SUP free shipping packaging 
where applicable should be included in the offer's price list.
    (ii) If the offeror responded ``will'' in paragraph (c)(2)(i) of 
this provision, the offeror identifies that the SUP free shipping 
packaging __ does need to be requested by the ordering official.
    (d) Identification standards. SUP free packaging icon for the 
types identified in paragraph (c) of this provision, will be 
available on GSA Advantage![supreg], as applicable.
    (e) Verification of SUP free packaging. An offeror, in 
identifying an item with SUP free packaging, must possess evidence 
or rely on a reasonable basis to substantiate the claim. The 
Government will accept an offeror's claim of SUP free packaging on 
the basis of possession of competent and reliable evidence. For any 
test, analysis, research, study, or other evidence to be ``competent 
and reliable,'' it must have been conducted and evaluated in an 
objective manner, using procedures generally accepted in the 
profession to yield accurate and reliable results.
(End of provision)


552.238-119  Single-use Plastic (SUP) Free Packaging Availability.

    As prescribed in 538.273(d), insert the following clause:

Single-Use Plastic (SUP) Free Packaging Availability (July 2024)

    (a) Definitions. As used in this clause--
    Single-use plastic (SUP) packaging means any plastic used for 
the containment, protection, handling, delivery, or presentation of 
goods by a producer for a consumer with the intent of being used 
once and then discarded, recycled or disposed of immediately after 
its contents have been used or unpackaged, and typically not 
refilled or otherwise reused by the producer. Packaging includes, 
but is not limited to brand packaging, grouped packaging, shipping 
packaging, ancillary packaging, and redundant packaging.
    Single-use plastic (SUP) free packaging means product or 
shipping containment materials free of single-use plastic. Other 
attributes of single-use plastic free packaging may include the 
following: use of minimal materials, will be reused multiple times, 
or produces less emissions compared to traditional manufacturing or 
distribution. These additional attributes alone do not qualify as 
SUP free. Examples may include, but are not limited, to corrugated 
cardboard, paper products, and paper backed tape.
    (b) General. The Contractor, in connection with this contract, 
is encouraged to--
    (1) Evaluate their products for redundant or unnecessary 
packaging that can be eliminated without affecting quality.
    (2) Package all products for shipment according to the 
Government's instructions or, if there are no instructions, in a 
manner sufficient to ensure that the products are delivered in 
undamaged condition with as little plastic waste material as 
possible.
    (3) Limit the use of plastic packaging materials that have a 
high likelihood of not being reused or recycled, as appropriate 
(e.g., plastic casing or wrapping).
    (4) Adopt SUP free packaging to the maximum extent practicable, 
as appropriate.
    (c) Procedures.
    (1) Price premiums and discounts. For any single-use plastic 
(SUP) free packaging identified per 552.238-118, Single-use Plastic 
(SUP) Free Packaging Identification, the Contractor may include in 
the submitted price list (see the Schedule, also referred to as MAS, 
solicitation instructions for submitting price list SUP free 
packaging). The submitted FSS contract price list may include a 
separate means of displaying information regarding product 
packaging. If the Contractor is providing SUP free packaging at 
either a price premium or discount, this should be clearly 
identified in the submitted price list.
    (2) Submission requirements. As additional SUP free packaging 
becomes available, the Contractor is encouraged to notify GSA of 
these changes, and is responsible for keeping all electronic catalog 
data current.
    (3) Identification of SUP free packaging. For easy 
identification of SUP free packaging, once available, GSA will use a 
SUP free packaging icon in GSA Advantage![supreg].
    (i) Offerors who provide SUP free packaging and want to benefit 
from the GSA Advantage![supreg] SUP free packaging icon must provide 
the information required in 552.238-118, Single-use Plastic (SUP) 
Free Packaging Identification.
    (ii) The Contractor is encouraged to place the GSA logo and GSA 
Advantage![supreg] SUP free packaging icon on their website and FSS 
price list for applicable supplies, see https://www.gsa.gov/logos. 
If the Contractor elects to use the GSA logo or icon, the website 
must clearly distinguish between those items awarded on the GSA 
contract and any other items offered by the Contractor on an open 
market basis.
    (d) Reliability. Accuracy of information and computation of 
prices for this clause is the responsibility of the Contractor. In 
addition to the other remedies available in the contract, the 
remedies may include, but are not limited to, the following:
    (1) If SUP free packaging is provided at a higher rate but 
different packaging is received, the Government may pursue 
corrective action.
    (2) If SUP free packaging is utilized, but the product received 
is damaged, the Contractor shall replace the item, refund the item, 
or the Government may pursue corrective action.
    (3) Inclusion of incorrect information in the price list 
regarding SUP free packaging may cause the Contractor to correct and 
resubmit the price list.
    (4) Failure to correct applicable information for this clause, 
may constitute sufficient cause for termination, pursuant to FAR 
52.212-4, Contract Terms and Condition-Commercial Products and 
Commercial Services, or remedies as provided by law.
(End of clause)
[FR Doc. 2024-12192 Filed 6-5-24; 8:45 am]
BILLING CODE 6820-61-P